Exhibit (c)(9)
CHANGE IN CONTROL AGREEMENT
COLUMBIA ENERGY GROUP
AND
_______________
THIS AGREEMENT, is by and between Columbia Energy Group (the "Company") and
______________ (the "Executive") and is effective as of this ___ day of _______,
1999.
W I T N E S S E T H:
WHEREAS, the Board has determined that it is in the best interests of the
Company and its shareholders for the Company to agree to provide benefits under
the circumstances described below to the Executive and other executives who are
responsible for the policy-making functions of the Company and the overall
viability of the Company's business; and
WHEREAS, the Board recognizes that the possibility of a change in control
of the Company is unsettling to such executives and desires to make arrangements
at this time to help assure their continuing dedication to their duties to the
Company and its shareholders, notwithstanding any attempts by outside parties to
gain control of the Company; and
WHEREAS, the Board believes it important, should the Company receive
proposals from outside parties, to enable such executives, without being
distracted by the uncertainties of their own employment situation, to perform
their regular duties, and, where appropriate, to assess such proposals and
advise the Board as to the best interests of the Company and its shareholders
and to take such other action regarding such proposals as the Board determines
to be appropriate; and
WHEREAS, the Board also desires to demonstrate to the executives that the
Company is concerned with their welfare and intends to provide that loyal
executives are treated fairly; and
WHEREAS, the Board wishes to assure the executives of fair severance should
any of their employment terminate in specified circumstances following a change
in control of the Company and to assure the executives of other benefits upon a
change in control.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. Definitions.
a. "Board" shall mean the Board of Directors of the Company.
b. "Cause" shall mean the Executive's fraud or dishonesty which has
resulted or is likely to result in material economic damage to the Company
or an affiliate of the Company, as determined in good faith by a vote of at
least two-thirds of the non-employee directors of the Company at a meeting
of the Board at which the Executive is provided an opportunity to be heard.
c. "Change in Control" shall mean:
(i) any person (as such term is used in Section 13(d) of the
Securities Exchange Act of 1934 (the "Act"), excluding a corporation or other
entity owned, directly or indirectly, by all or substantially all of the
stockholders of the Company immediately prior to the transaction in
substantially the same proportions as their ownership of stock of the Company
("Person")), becomes the beneficial owner, directly or indirectly, of 25% or
more of the outstanding stock of the Company requiring the filing of a report
with the Securities and Exchange Commission under Section 13(d) of the Act;
(ii) recommendation by the Board of approval of a purchase by any
Person of shares pursuant to a tender or exchange offer to acquire any stock of
the Company (or securities convertible into stock) for cash, securities or any
other consideration, PROVIDED that, pursuant to the terms of the proposed tender
or exchange offer, such Person intends to become the beneficial owner (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 25% or
more of the outstanding stock of the Company (calculated as provided in
Paragraph (d) of Rule 13d-3 under the 1934 Act in the case of rights to acquire
stock);
(iii) approval of the shareholders of the Company of a merger,
consolidation, liquidation or dissolution of the Company, or the sale of all or
substantially all of the assets of the Company (a "Business Combination"),
unless, following such Business Combination, all or substantially all of the
stockholders of the Company immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 60% of, respectively, both
the outstanding shares of common stock and the combined voting power of the
outstanding voting securities entitled to vote generally in the election of
directors of the corporation resulting from such Business Combination; or
(iv) during any period of 24 consecutive months, individuals who
at the beginning of such period constitute the Board and any new directors whose
election by the Board or nomination for election by the Company's shareholders
was approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board.
With respect to subsections (c)(ii) and (c)(iii) of this Section 1, upon the
Board's determination that the transaction subject to Board recommendation of
approval or shareholder approval, as the case may be, will not be closed, a
Change in Control shall be deemed not to have occurred from such date forward
and this Agreement shall continue in effect as if no Change in Control had
occurred, except to the extent termination requiring payments under Section 3
hereof shall have occurred prior to such determination by the Board. In no event
shall any one transaction result in more than one Change in Control.
d. "Company Information" shall mean (i) confidential information
including, without limitation, information received from third parties under
confidential conditions, (ii)
2
information subject to the Company's and its affiliates attorney-client or
work-product privilege; and (iii) other technical, business, legal or financial
information (including, without limitation, customer lists), the use or
disclosure of which might reasonably be construed to be contrary to the
Company's and its affiliates' interests.
e. "Compensation" shall mean the sum of the following amounts: (i) the
Executive's annual base salary at the time of the Change in Control or, if
greater, at the time of termination of employment, plus (ii) the "target" level
of incentive compensation under the Annual Incentive Compensation Plan or any
other short-term or cash bonus incentive plans (the "Bonus") that the Executive
had the opportunity to earn in the year in which his employment was terminated,
or, if greater, the Bonus for the year in which the Change in Control occurred,
in all cases, including any amounts which are deferred by the Executive.
f. "Coverage Period" shall begin on the Starting Date and end on the
Ending Date.
g. "Disability" shall mean an injury or illness which permanently
prevents the Executive from performing services to the Company and which
qualifies the Executive for payments under the Company's long-term disability
plan, as in effect from time to time.
h. "Effective Date" shall mean the date of the execution of this
Agreement.
i. "Ending Date" shall be the date which is 24 full calendar months
following the date on which a Change in Control occurs; PROVIDED, however, that
if a Change in Control is based on Board recommendation of approval or
shareholder approval, pursuant to Sections 1(c)(ii) or 1(c)(iii), the Ending
Date shall be the date which is 24 full calendar months following the date of
the consummation of the transaction which was the subject of Board
recommendation of approval or shareholder approval, whichever is applicable.
j. "Good Reason" shall mean any of the following:
(i) the Company or an affiliate of the Company requiring the
Executive to be based at any office or location more than 50 miles from [insert
applicable principal executive office], and/or the Company requires the
Executive to travel on Company business to a substantially greater extent than
was required of the Executive immediately prior to the date of Change in
Control;
(ii) a reduction which is more than de minimis in (A) the
Executive's annual rate of base salary or the Bonus opportunity, or (B) the
long-term incentive compensation the Executive has the opportunity to earn,
determined in the aggregate if multiple long-term incentive opportunities exist;
(iii) failure of the Company to continue in effect any employee
benefit plan, policy or arrangement, including, but not limited to, any
retirement, 401(k) life, medical,dental, disability, accidental death or travel
insurance plan, policy or arrangement in which the Executive was
3
participating immediately prior to the Change in Control, unless the Company
provides the Executive with a plan or plans that provide substantially similar
benefits, or benefits substantially similar to the benefits provided to
similarly situated executives; or
(iv) the Company failing to require a successor entity to assume
and agree to perform the Company's obligations pursuant to Section 9 of this
Agreement.
For purposes of this Section 1(j), no event described above shall constitute
Good Reason unless the Executive has given written notice to the Company of his
termination for Good Reason specifying the event relied upon for such
termination within one year after the occurrence of such event (but in no event
later than the Ending Date) and the Company has not remedied such within 30 days
of receipt of such notice. The Company and Executive, upon mutual written
agreement, may waive any of the foregoing provisions which would otherwise
constitute Good Reason.
k. "Retirement Plan" shall mean the Company's qualified defined
benefit retirement plan(s) in which the Executive participates.
l. "SERP" shall mean any and all supplemental retirement plans in
which the Executive participates (including, but not limited to, any benefit
restoration plan(s) maintained by the Company from time to time).
m. "Starting Date" shall be the date on which a Change in Control
occurs during the Term of this Agreement (as defined below).
2. Term.
a. This Agreement shall be effective as of the Effective Date and
shall continue thereafter until the date which is the third anniversary of the
Effective Date, or such later date as provided in paragraph (b) of this Section
2 (the "Term of this Agreement"); PROVIDED however, the Term of this Agreement
shall not expire prior to the last day of any Coverage Period, and the Company's
obligations, if any, to provide payments and/or benefits pursuant to Section 3
of this Agreement and the obligations of the Company and the Executive pursuant
to Section 5 of this Agreement shall survive the termination of this Agreement.
b. The Term of this Agreement shall be extended automatically for
subsequent one year periods beginning on the first anniversary of the Effective
Date and continuing each anniversary thereafter, unless either the Company or
the Executive shall give written notice to the other that the Term of this
Agreement shall not be so extended on a particular anniversary date; PROVIDED,
however, that such notice must be given, if at all, within the 30 day period
preceding such anniversary.
4
3. Severance Benefits.
a. If the Executive's employment is terminated during the Coverage
Period for a reason other than the Executive's death, and such termination is by
the Company for any reason other than Cause or the Executive's Disability, or by
the Executive in the event of Good Reason, then,
(i) within thirty business days after such termination, the
Company shall pay to the Executive (or if the Executive dies after termination
of employment but before receiving all payments to which he has become entitled
hereunder, to the estate of the Executive) in cash the following amounts:
(A) accrued but unpaid salary and accrued but unused
vacation;
(B) an amount equal to two times the Executive's
Compensation;
(C) a prorated portion of the Bonus that the Executive could
have received in the year during which his employment is terminated, determined
by calculating the product of (1) the amount of the Bonus the Executive could
have earned in such year, and (2) a fraction, the numerator of which is the
number of days through the date of termination in the year with respect to which
the Bonus relates, and the denominator of which is the total number of days in
the applicable year;
(D) an amount equal to the excess of (1) the lump-sum
actuarial equivalent of the benefit under (x) the Retirement Plan (utilizing
actuarial assumptions no less favorable to the Executive than those in effect
under the Retirement Plan immediately prior to the date of the Change in
Control), and (y) the SERP, that the Executive would have received if his
employment had continued for two years after the date of termination (the
"Severance Period") (giving credit for all purposes, including, but not limited
to, accrual of benefits, vesting, age and years of service), and assuming for
purposes of determining the reduction for any early retirement benefit that the
Executive had not less than 10 years of service, and further assuming that, for
purposes of determining benefits under the Retirement Plan and SERP, the
Executive's covered annual compensation ("Covered Compensation") during the
Severance Period would have been equal to the Executive's annual rate of Covered
Compensation at the time of termination of employment or, if greater, at the
time of the Change in Control (determined without regard to compensation or
benefit limitations prescribed by federal law or regulation), over (2) the
lump-sum actuarial equivalent of the Executive's actual accrued benefit (paid or
payable), if any, under the Retirement Plan and the SERP as of the date of
termination (utilizing the same actuarial assumptions as used above in this
subsection (1) of this Section 3(a)(i)(D)); and
(E) an amount equal to the sum of the additional
contributions (other than pre-tax salary deferral contributions by the
Executive) that would have been made or credited during the Severance Period (as
defined in Section 3(a)(i)(D) above) by the Company to the Executive's
account(s) under each qualified defined contribution plan, and each
non-qualified supplemental executive savings plan relating to such qualified
defined contribution plans (including,
5
but not limited to, any benefit restoration plan(s) maintained by the Company
from time to time) in which the Executive participated, determined by assuming
that,
(1) the Executive's employment had continued through
the Severance Period;
(2) the Executive's rate of compensation recognized by
each such plan would, during the Severance Period, have been equal to the
Executive's annual rate of Covered Compensation at the time of termination of
employment or, if greater, at the time of the Change in Control; and
(3) with respect to matching and/or discretionary
contributions, the Executive's rate of pre-tax salary deferral contributions and
the Company's matching contribution, in each year during the Severance Period,
would have been equal to the maximum percentage allowed under the applicable
plan at the time of termination of employment or, if greater, at the time of the
Change in Control; and
(ii) in addition, the Executive shall be entitled to the
following additional benefits:
(A) all unexpired and unexercised stock options and/or value
sharing rights previously awarded to the Executive shall become immediately
vested and exercisable, and restrictions on all restricted stock beneficially
owned by the Executive shall lapse immediately;
(B) outplacement services, the scope and provider of which
shall be selected by the Executive in his or her sole discretion (but at a cost
to the Company of not more than the lesser of (1) 15% of the Executive's annual
base salary at the time of termination of employment or (2) $50,000); and
6
(C) for a period commencing with the month in which
termination of employment shall have occurred and ending 24 months thereafter,
the Executive and, as applicable, the Executive's covered dependants shall be
entitled to all health, welfare, and fringe benefits provided by the Company to
its employees generally or to the Executive on an individual or group basis
(including, but not limited to, any life, accident, health, hospitalization or
long-term disability insurance, maintained from time to time by the Company),
whether maintained pursuant to a plan, policy or other arrangement (written or
unwritten), as if the Executive were still employed during such period, at the
same level of benefits and at the same dollar cost to the Executive as is
available generally to comparable employees of the Company. If the Company
reasonably determines that the coverage required under this Section 3(a)(ii)(C)
would cause a welfare plan sponsored by the Company to violate any provision of
the Internal Revenue Code of 1986, as amended (the "Code") prohibiting
discrimination in favor of highly compensated employees or key employees, or if
any benefits described in this Section 3(a)(ii)(C) cannot be provided (or the
Company determines that it does not wish to provide such benefits) pursuant to
the appropriate plan or program maintained for employees of the Company, the
Company shall provide such benefits outside such plan or program at no
additional cost (including, without limitation, tax costs) to the Executive or,
as determined by the Company in its sole discretion, the Company will pay to the
Executive the cash equivalent thereof. The benefits provided in accordance with
this Section 3(a)(ii)(C) shall be secondary to any comparable benefits provided
by another employer.
b. If Independent Tax Counsel (as that term is defined below) shall
determine that the aggregate payments and benefits provided to the Executive
pursuant to this Agreement, and any other payments and benefits provided to the
Executive from the Company, its affiliates and/or plans of the Company and/or
its affiliates, which constitute "parachute payments" as defined in Section 280G
of the Code, or any successor provision thereto ("Parachute Payments"), would be
subject to the excise tax imposed by Section 4999 of the Code (the "Excise
Tax"), then such Parachute Payments shall be reduced (but not below zero) to the
extent necessary so that no portion thereof shall be subject to the Excise Tax.
The determination of the Independent Tax Counsel under this subsection shall be
final and binding on all parties hereto. No additional payments by the Company
or return of payments by the Executive shall be required or made if an Excise
Tax is later imposed upon the Executive or a later determination is made which,
based on case law, an IRS holding or otherwise, would result in a recalculation
of the Excise Tax implications. Unless the Executive gives prior written notice
specifying a different order to the Company to effectuate the limitations
described above, the Company shall reduce or eliminate the Parachute Payments by
first reducing or eliminating those payments or benefits which are not payable
in cash and then by reducing or eliminating other Parachute Payments, in each
case in reverse order beginning with payments or benefits which are to be paid
the farthest in time from the employment termination date. Any notice given by
the Executive pursuant to the preceding sentence shall take precedence over the
provisions of any other plan, arrangement or agreement governing the Executive's
rights and entitlement to any benefits or compensation. For purposes of this
Section 3(b), "Independent Tax Counsel" shall mean a lawyer, a certified public
accountant with a nationally recognized accounting firm, or a compensation
consultant with a nationally recognized actuarial and benefits consulting firm
with expertise in the area of executive compensation tax law, who shall be
selected by the Company and shall be reasonably acceptable to the Executive, and
whose fees and disbursements shall be paid by the Company.
7
c. In the event of any termination of the Executive's employment
described in Section 3(a), the Executive shall be under no obligation to seek
other employment, and there shall be no offset against amounts due the Executive
under this Agreement on account of any remuneration attributable to any
subsequent employment; PROVIDED, however, to the extent the Executive receives
medical and health benefits from a subsequent employer, medical and health
benefits provided pursuant to Section 3(a)(ii)(C) shall be secondary to those
received from the subsequent employer.
d. It is intended that the termination provisions herein are in lieu
of, and not in addition to, termination or severance payments and benefits
provided under the Company's other termination or severance programs, plans or
agreements, whether or not in written form ("Other Termination Benefits").
Unless waived by the Executive, Other Termination Benefits the Executive
receives, or is entitled to receive in the future, shall reduce payments and
benefits provided hereunder.
e. If the Executive's employment shall terminate by reason of the
Executive's death or Disability, this Agreement shall terminate without further
obligations to the Executive or the Executive's legal representatives under this
Agreement, other than for payment of accrued but unpaid obligations and the
timely payment or provision of other benefits pursuant to the terms of the
respective plan, policy or arrangement. Such accrued but unpaid obligations
shall be paid to the Executive or the Executive's estate or beneficiary, as the
case may be, in a lump sum in cash within 30 days of the Executive's death or
Disability.
4. Source of Payments.
All payments provided for in Section 3 above shall be paid in cash
from the general funds of the Company; PROVIDED, however, that such payments
shall be reduced by the amount of any payments made to the Executive or his
dependents, beneficiaries or estate from any trust or special or separate fund
established by the Company to assure such payments. The Company shall not be
required to establish a special or separate fund or other segregation of assets
to assure such payments, and, if the Company shall make any investments to aid
it in meeting its obligations hereunder, the Executive shall have no right,
title or interest in or to any such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken pursuant
to its provisions, shall create or be construed to create a trust of any kind or
a fiduciary relationship between the Company and the Executive or any other
person. To the extent that any person acquires a right to receive payments from
the Company such right shall be no greater than the right of an unsecured
creditor of the Company.
8
5. Litigation Expenses.
The Company shall pay to the Executive reasonable legal fees
and expenses incurred in good faith by the Executive as a result of a
termination which entitles the Executive to benefits under this Agreement
(including, but not limited to, all such fees and expenses incurred in disputing
any such termination or in seeking in good faith to obtain or enforce any
benefit or right provided by this Agreement or in connection with any tax audit
or proceeding to the extent attributable to the application of Code Sections
4999 or 280G to any payment or benefit provided hereunder). Such payments shall
be made within 5 business days after delivery of the Executive's written
requests for payment accompanied with such evidence of fees and expenses
incurred as the Company reasonably may require.
6. Tax Withholding.
The Company may withhold from any payments made under this Agreement
all federal, state or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
7. Entire Understanding.
This Agreement contains the entire understanding between the Company
and the Executive with respect to the subject matter hereof and supersedes any
prior severance or termination agreement between the Company and the Executive,
except that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to the Executive of any kind elsewhere provided and not
expressly dealt with in this Agreement.
8. Severability.
If, for any reason, any one or more of the provisions or part of a
provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement
not held so invalid, illegal or unenforceable, and each other provision or part
of a provision shall to the fullest extent consistent with law continue in full
force and effect.
9. Consolidation, Merger, or Sale of Assets.
If the Company is acquired, consolidates or merges into or with, or
transfers all or substantially all of its assets to, another entity, the term
"the Company" as used herein shall mean such other entity and this Agreement
shall continue in full force and effect. In the case of any transaction in which
a successor would not by the foregoing provision or by operation of law be bound
by this Agreement, the Company shall require such successor expressly and
unconditionally to assume and agree to perform the Company's obligations under
this Agreement, in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place.
9
10. Confidentiality; Outstanding Charges.
a. Within a reasonable period of time following termination of
employment, the Executive shall return to the Company all Company Information,
reports, files, memoranda, records, credit cards, cardkey passes, door and file
keys, computer access codes, software and other property which the Executive has
received or prepared or helped to prepare in connection with his employment with
the Company.
b. The Executive acknowledges that in the course of employment with
the Company, he has acquired Company Information and that such Company
Information has been disclosed to him in confidence and for the Company's use
only. The Executive agrees that he (i) will keep such Company Information
confidential at all times, (ii) will not disclose or communicate Company
Information to any third party, and (iii) will not make use of Company
Information on his own behalf or on behalf of any third party. The Executive
further acknowledges and agrees that the Company's remedy in the form of
monetary damages for any breach by him of any of the provisions of this Section
10 may be inadequate and that, in addition to any monetary damages for such
breach, the Company shall be entitled to institute and maintain any appropriate
proceeding or proceedings, including an action for specific performance and/or
injunction.
c. In addition to the foregoing, the Executive agrees to keep the
terms of this Agreement strictly confidential. The Executive may only disclose
the terms of this Agreement to the Executive's attorney, spouse and tax advisor,
unless the existence of this Agreement with the Executive and the terms hereof
are publicly disclosed by the Company.
d. The Executive agrees to pay to the Company any outstanding amounts
owed to the Company, and further agrees that by signing this Agreement he hereby
authorizes the Company to deduct any outstanding charges from the payments
provided pursuant to Section 3 of this Agreement.
11. Notices.
All notices, requests, demands and other communications required or
permitted hereunder shall be given in writing and shall be deemed to have been
duly given if delivered or mailed, postage prepaid, first class as follows:
a. to the Company:
c/o Columbia Energy Group Service Corporation
Sr. Vice President--Human Resources
13880 Dulles ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
10
b. to the Executive:
-----------------
-----------------
-----------------
or to such other address as either party shall have previously specified in
writing to the other.
12. No Attachment.
Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
13. Binding Agreement.
This Agreement shall be binding upon, and shall inure to the benefit
of, the Executive and the Company and their respective permitted successors and
assigns.
14. Modification, Waiver and Pooling of Interests.
Except as provided below, this Agreement may not be terminated,
modified or amended (other than with respect to amendments or modifications made
by the Company solely for purposes of clarifying an ambiguous or unclear
provision) other than by an instrument in writing signed by the parties hereto.
No term or condition of this Agreement shall be deemed to have been waived, nor
shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument signed by the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived. Notwithstanding any other provision contained in this
Agreement to the contrary, if any action taken or required to be taken pursuant
to the terms of this Agreement would preclude the use of the "pooling of
interests" accounting method with respect to any specific transaction, the
consummation of which is intended to be accounted for under the "pooling of
interests" method, this Agreement may be modified to the extent the Company
deems necessary to permit such "pooling of interests" accounting treatment.
15. Headings of No Effect.
The section headings contained in this Agreement are included solely
for convenience of reference and shall not in any way affect the meaning or
interpretation of any of the provisions of this Agreement.
11
16. Revocation and Executive Acknowledgments.
The Executive acknowledges that he has read and understands the
provisions of this Agreement. The Executive further acknowledges that he has
been given an opportunity for his legal counsel to review this Agreement (or is
given the opportunity to do so prior to the end of the revocation period
hereunder) and that the provisions of this Agreement are reasonable and that he
has received a copy of this Agreement.
17. Not Compensation for Other Plans.
It is understood by all parties hereto that amounts paid and benefits
provided hereunder are not to be considered compensation, earnings or wages for
purpose of any employee benefit plan of the Company or its affiliates,
including, but not limited to, the SERP and the qualified retirement plans.
18. Release.
Notwithstanding any provision herein to the contrary, the Company
shall not have any obligation to pay any amount or provide any benefit under
this Agreement unless and until the Executive executes a release of the Company,
its affiliates and related parties, in such form as the Company may reasonably
request, of all claims against the Company, its affiliates and related parties
relating to the Executive's employment and termination thereof.
19. Governing Law.
This Agreement and its validity, interpretation, performance, and
enforcement shall be governed by the laws of Virginia.
IN WITNESS WHEREOF, the Company through its officers duly authorized, and
the Executive both intending to be legally bound have duly executed and
delivered this Agreement, to be effective as of the Effective Date.
COMPANY
Date:____________________ By: _____________________________
Its
EXECUTIVE
Date:____________________ __________________________________